Articles Posted in Jury Instructions

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On June 23, 2009, Ramon Ortiz was driving northbound on Sacramento Boulevard and stopped at a red light at the intersection of Chicago Avenue in Chicago, Ill. When the light turned green, he started into the intersection and his car was hit by the defendant’s car. Richard Sakre was driving his car westbound. Ortiz alleged in his lawsuit that Sakre ran the red light, which caused the collision.

Ortiz was 44 and suffered three cervical disc herniation/protrusions at C4-5, C5-6 and C6-7. He also sustained a torn left rotator cuff, which was caused or aggravated by this crash. He was treated with steroid injections and physical therapy and then became symptom-free six months after the accident.

Ortiz’s medical bills totaled $55,348. He missed a week of work as a commercial roofing driver.

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Patricia DeBoo, 61, was shopping at Menard’s when she was struck in the head by a bathroom vanity that was inadvertently pushed off a high shelf by a Menard’s employee. The worker was operating a forklift in an adjacent aisle and attempting to bring down some merchandise from the high storage shelf.

DeBoo alleged in her lawsuit that she suffered a cervical end-plate fracture3 at C-6, right sternoclavicular injury at L4-5, facet arthropathy and sacroiliac joint injury, which resulted in more than $44,000 in medical bills.

The defendant admitted liability, but argued at trial that only the spinal fracture and sternoclavicular injury were related to this incident. The defendant maintained that the low back injury was not related to this accident.

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On Jan. 26, 2011, 23-year-old Jerry Oswalt was riding his bike from one dog walking customer’s home to another, riding southbound on Sacramento Avenue near its intersection with Logan Boulevard. Oswalt claimed that he entered the intersection on a green light but was hit at the bike’s rear tire by the defendant’s eastbound car, which ran a red light. The defendant, Esther Fragoso, was claimed to have caused Oswalt to fall and strike his head on the road knocking him unconscious. When he regained consciousness, his head was bleeding and he staggered out of the intersection to a nearby grass median with his bike and laid down.

Oswalt, in addition to the concussion he suffered, sustained a six-inch cut to the right temple area above his eye, facial scarring, a tiny cortical fracture, right orbital hematoma, right knee pain and contusions.

Fragoso, 77 and retired, argued that she had a green light and that Oswalt went through a red light. She also said that her vehicle never made contact with Oswalt’s bicycle and that she saw him lose control of his bike on the wet, snowy pavement and fall to the ground.

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In February 2009, Valerie Mobley’s Subaru developed transmission problems. Mobley found Best Transmissions, which acted as a broker and referred auto repair jobs to various repair shops. Mobley called the number listed on the website that she found and spoke to a salesman who told her that a neighborhood shop would do the repair work and that no work would be done without a prior estimate and customer authorization. Mobley was told that no charges would be assessed unless she decided to go elsewhere for the work.

Mobley received an e-mail that contained an agreement for authorization for the work on her car. The agreement listed the price not involving “hard parts” as $1,397. The next day a tow truck came and took the Subaru without telling her where the vehicle was being taken.

Mobley called Best Transmissions again and an employee there gave her the number of the repair shop. The repair shop was called Tramco and was located nearly 30 miles from her home. When Mobley called Tramco she was directed back to Best Transmissions. Mobley was told that Best Transmissions was the customer of Tramco, not Mobley.

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A Cook County jury returned a verdict for $1.5 million for Teodoro Ramirez, who was injured while moving roofing materials above a warehouse. The defendant construction company, FCL Builders Inc., requested on appeal from that verdict that the appellate court grant a new trial. FCL argued that the Cook County circuit court judge gave erroneous jury instructions that made the verdict unfair.

The appeals court found that the jury instructions did include error, but the court affirmed the ruling and verdict on the ground that the defendant did not suffer from the error.  In other words, the error was harmless.

It was an 84-page opinion written by appellate court Justice Robert E. Gordon. In conclusion, the appeals panel ruled that the jury instructions would not have affected the outcome of the case.

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On Dec. 1, 2008, Sarah Conway, Kathleen O’Toole and Mary Heidkamp were passengers in Joan Steenveld’s car when it was broadsided by the defendant, Lynnard McCullough, who was driving a tractor-trailer. All but Steenveld perished in the crash. Both of the vehicles skidded off a snowy, icy road.  Steenveld’s southbound car skidded over the center line in front of McCullough’s northbound truck; he was trying to avoid a head-on collision.  Steenveld steered to the right, driving into an empty field, but her car also went off the road again winding up in the truck’s path. 

The attorney for the estates of the deceased plaintiffs asked the Cook County judge to instruct the jurors that one or more of the defendants was liable to the plaintiffs.  It was alleged that either Steenveld or McCullough or both must have been driving too fast for conditions and thus, were liable for the deaths of the decedents.  The speed limit at the place of the crashes was 55 mph, although Steenveld testified she was going 35 mph. 

Two witnesses testified that McCullough’s speed was 40-45 mph.  In addition, there was an expert who testified that McCullough’s evasive maneuver was appropriate.  Without an objection, the Cook County trial judge granted a motion in limine that requested an order barring “any argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries.”

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Teodoro Ramirez was injured while working for his employer and subcontractor, Sullivan Roofing. The case was tried before a jury in Cook County against the general contractor on the project, FCL Builders. At the end of the trial, the trial judge included Sullivan Roofing on the jury verdict form for apportioning fault under Illinois Code of Civil Procedure, §2-1117. 

The jury’s verdict of $1.588 million against FCL included a finding that Ramirez was 20 percent at fault for his own injuries while FCL and Sullivan were held to be 40 percent at fault each. 

FCL appealed, arguing that Sullivan Roofing should not have been on the verdict form. 

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For as long as I have been practicing law, now 37 years, the question an expert must always be asked is whether his or her opinion is to a reasonable degree of certainty. Once that question is answered in the affirmative, the burden for the offering expert is whether the opinion that is about to be given improving the strength of the expert witness’s opinion is more probably true than not. That second question must be answered affirmatively as well. 

In a recent deposition of one of my experts, one of the defendants’ lawyers spent a great deal of time badgering the witness about what she believed the term reasonable degree of medical certainty means since it was stated in that fashion in her written opinions. The answer went something like this:  “I have never been asked this before.” The defense counsel argued with the witness, saying that she did not correctly state what he said was the “test in Illinois,” for reasonable certainty.  I am not aware of any law that requires an expert to define what reasonable certainty means before answering, since it is a set of words that are understandable on their face. This witness testified that she believed it was more probably true than not that the injury suffered by the plaintiff was caused by the negligence of the defendants.

To dig deeper in this, “reasonable certainty” is a statement that the opinion is not a guess or speculation, but the product of some scientific method or from the education, background and experience of the expert. 

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Clarence Goranowski filed a lawsuit against Metra under the Federal Employers’ Liability Act (FELA) alleging that he was injured while reinstalling the door on the railcar’s bathroom without assistance. In his suit, he also stated that  the railroad was negligent in choosing not to provide a reasonably safe work environment and for choosing not to provide sufficient assistance to Goranowski to install the door.

Before the start of the trial, the defendant, Metra, asked the trial judge to submit a special interrogatory to the jury that asked the question:  “Did Metra use ordinary care to provide plaintiff with a reasonably safe place in which to do his work?”

The Cook County judge agreed with Goranowski’s objection that the special interrogatory was defective because it covered only one of the many different allegations of negligence. Metra refused to submit a revised special interrogatory.

Goranowski received a $545,000 jury verdict, which was reduced to $272,500 based upon the jury’s finding that Goranowski was 50% at fault for his own injuries. In any event, Metra appealed to the Illinois Appellate Court.

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